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Saturday, October 10, 2015

On 30 September 2015, the appellate division made public a copy of its judgment which upheld the death penalty against Salauddin Quader Chowdhury, a former Bangladesh Nationalist Party leader, for the commission of four offenses committed during the country's 1971 war of independence.

At present there is a hiatus. There are no legal proceedings pending, providing an opportunity to comment on the current situation.

The defense lawyers have a right to lodge an application seeking a review of the appellate division judgement within 15 days of the judgement which was published on 30 September. At the time of writing, they have not done so.

Commentary on any legal proceeding in Bangladesh - and in particular those involving the International Crimes Tribunal - is difficult, as Bangladesh courts take a very expansive view of what is contempt of court through 'scandalization' (unlike for example Indian courts). It has become very difficult for writers in Bangladesh to assess when commentary will be viewed as 'fair criticism', exempt from contempt of court charges, and when it will be viewed as 'scandalization'. As a result, few in Bangladesh dare to write, fearing the consequences.

In relation to the International Crimes Tribunal, about which there is understandably much emotion, this has become even more precarious. Even if one escapes an application for contempt, there is a category of tribunal supporters who refuse to accept that writing about fair trial standards is at all justified. For them, the process should not be subject to any critical commentary, and they will try to label any writer who raises points they do not like as 'pro-jamaat', 'pro-war criminal' and the like - failing to engage at all with the substance of what is being stated. Social ostracism, from otherwise progressive people whose views on most other things one shares, is therefore another risk that people face.

Nonetheless, there are moments when the risk is worth taking - and this is no more so than when someone is on the cusp of being put to death.

This is part-1 of an article - about which great care has been taken to ensure that it stays the right side of the line of 'fair criticism' - setting out concerns that 26 key defense witnesses were never given an opportunity to testify on behalf of Salauddin Quader Chowdhury. To read part 2, click here

The missing 26 witnesses

When the Bangladesh government decided to
hold to account those alleged to have committed international crimes during the
country’s independence war in 1971, they did not just pick the suspects up and
shoot them.

Far from it. Following the demands of campaigners
who for many years had been demanding justice for Bangladeshis who had collaborated
with the Pakistan military, in 2010 the newly elected Awami League government
established a special tribunal.

Allegations were investigated by a
dedicated group of police, and prosecutors laid charges against those where
they thought there was sufficient evidence. Following a trial, a three-judge
tribunal decided on their guilt, following which there was a right for the
accused to appeal.

Therefore, for those seeking justice,
‘process’ – that is to say, the manner in which the guilt of the accused was to
be decided - was a crucial element
of their demand.

Campaigners did not just want these men – many
of whom they hated, despised and considered guilty of heinous crimes – to be
just ‘picked up and shot’.

They wanted them to be proved guilty in a court of
law before receiving as they later put it, ‘the highest penalty available’. And
they wanted this process to be ‘fair’

A week ago, the appellate division published
its full judgment upholding the death penalty against the Bangladesh
Nationalist Party leader, Salauddin Quader Chowdhury for four offences involving
crimes against humanity during the 1971 war.

Assuming he is put to death – and there does
remains the option of the defence submitting a review application in the coming
week – he will be the third person to suffer the death penalty following
conviction at the International Crimes Tribunal.

However, how fair was the process that has
resulted in this conclusion?

A fair process requires many things, but
one crucial element is allowing an accused person a proper opportunity to present his or her case.

But, in relation to the four offences for
which Salauddin has been sentenced to death, there were 26 crucial defence
witnesses that were never given an opportunity to testify in court.

It is the matter of these witnesses, from
whom no court has heard, which is the subject of these articles.

The six foreign witnesses

Who are these witnesses, and why are they
so important?

Six of the witnesses live outside Bangladesh and include a former US
ambassador, a former prime minister, a former member of the Pakistan
legislative assembly and the current chairperson of the Dawn media group in
Pakistan.

Their evidence supports Salauddin’s alibi defence, which is
that on 29 March 1971 he flew out of Dhaka to Karachi where he stayed for three
weeks. After that, he travelled on to Lahore where he studied, until August
of that year, for a degree at Punjab University.

We know what they would have stated in court as the defence obtained
sworn statements from them.

These witnesses include Muhammad Osman Siddique, the former United
States ambassador, who stated that he was on the same flight as Salauddin, who was an old school friend of his, when he flew to Karachi on 29 March.

Karachi-based Muneeb Arjmand Khan, also a friend of
the accused since school days, stated that on 29 March he ‘received’
Salauddin from Karachi airport and took him to ‘Mr Yusuf Haroon’s residence,
known as Seafield.’ He also said that he was amongst those who took the BNP
leader to Karachi airport when after 3 weeks he moved to Lahore so that he
could go to Punjab university.

Amber Haroon Siddiqui, now the chairperson of Dawn media, confirmed
that when Salauddin arrived in Karachi, he lived at her family house, (known as
‘Seafield’) for about three weeks. She said, ‘We used to have discussions at
the dinner table where [Salauddin Quader Chowdhury] would join me, my sisters and
my parents.’

And then there is Ishaq Khan Khakwani, a former member of the
National Assembly of Pakistan, who said that ‘[Salauddin] arrived at Karachi a
few days after … 26th March 1971 …. Salauddin was picked up from the airport by
our mutual friend Muneeb Khan and I spoke to both of them once they reached Mr
Yusuf Haroon’s [father or Amber] residence called Seafield House.’ He then says
that when the BNP leader moved to Lahore, and he was admitted in the Punjab university
the accused stayed within ‘in our family house … where he stayed with me
throughout till we left for London in October 1971.’ He mentions the names of
five people who would congregate with the accused ‘almost daily’ in that
period, and stated that ‘Shamin Hasnain, who is now a justice of the High Court
in Bangladeshi’ would sometimes join them.

Along with two other witnesses their evidence is that Salauddin was
not present in Bangladesh during the war – and specifically he was not present there
on 13 and 17 April when he is said to have committed the four offences for
which he has been sentenced to death.

The 20 Bangladesh witnesses

The other 20 witnesses live in Bangladesh and their evidence – as
seen by the affidavits which they drafted - dispute key elements of the
prosecution case that claim that Salauddin committed the four offences.

The first offence on 13 April 1971 involved the murder of Nutun Chowdhury
at the Kundeshwari compound in Gohira village. In this case, the Tribunal
primarily relied on two ‘eye-witnesses’ - that of Gouranga Singha, who was part
of the victim’s extended family and Gopal Chandra, the principal of Kundeshwari
Girlís college.

In its judgment the Tribunal quoted Gopal as stating that he saw the
accused shoot Nutun Chandra Singha using ‘his pistol or revolver as he had
instruction from his father to kill Nutun Chandra and thereafter, accused
Salauddin Quader Chowdhury left the crime site after ensuring death of Nutun
Chandra who died onthespot.’

However seven people gave affidavits which state that Gopal had fled
Kundeswari before the offence took place, and six that Gourango was also not
present.

A 78 year old resident of Kundeshwari, for example, said that ‘8 or
10 days before the death of Notun Chandra Singha, myself and my cousin Gorongho
Singha and other members of my family all went to India via the Ramgar border.
The college principal, Gopal Chandra Das and his family were also with us. When
Nutun Chandra died, Goronga Singho and Gopal Chandra Das were not present at
Kundeshwari Bhavan. They were with us in India.’

In addition, three people said that it was the Pakistani soldiers
alone that killed Nutun and that the only Bengalis present had their ‘hands
tied up’. A 66 year old resident of the village Gohira stated that, ‘At one
stage, one soldier shot at Nutun Babu. He fell to the ground at once. After the
shooting, within a couple of minutes, the soldiers left the place and took a
lot of things with them. With the soldiers, two Bengali men were there with
their hands tied up.’

In the second offence that took place that day, the Tribunal relied on
the evidence of Anil Boran Dhor to convict Salauddin of participating in the
murder of four men in Bonik Para in Sultanpur.

Anil had told the Tribunal that he and his father were picked up
from their home by the accused, taken outside and shot along with some other
members of the village. He said that he somehow survived, but that his father
and two of his uncles died.

However two people from the village of Sultanpur, said that
before the murder Anil had taken refuge in India with them. And another
witness, says that soon after the killing he went to the crime scene and heard
that only Pakistani soldiers were involved.

In the third offence, Salauddin was convicted of participating in
the killing of 50 people from the village of Unsatturpara. Prosecution
witnesses alleged that on the same day as the other two offences, Salauddin had
led Pakistan soldiers to the village where they were shot in the BNP leader’s
presence.

Chapala Rani - called
a ‘star witness’ in the Tribunal’s judgment had told the court that she was amongst
those assembled by the village pond, and that her father and two brother in
laws were killed.

However four people, all residents of Unsatturpara stated that
Chapala Rani had taken refuge in India before the incident took place. They
also state that Janti Bala Paul, and Sujit Mohafon, whose statements were also
relied by the Tribunal, were not present.

One 66 year old person, for example, stated that on hearing that the
Pakistani had set up a camp close to where they lived many people decided to go
to India. ‘And with ... Janti Bala Paul, ...
Chapala Rani, along with their children,’ the affidavit
states, ‘we went on 3 or 4th of April to India by the Ramgar border. Sujit, the
younger son of Jogesh Chandra Mohazan, was also with us.’

In relation to the fourth death sentence offence that took place on
the 17 April, involving the abduction and murder of the founder of the Awami
League in Chittagong, Sheikh Mozaffor Ahmed and his son Sheikh Alamgir, four
people questioned the prosecution evidence given in
court.

One, a 71 year old man who was at that time the ‘linesman’ of the
bus-stand, from where Salauddin is supposed to have picked the two men up, said
that he had never heard about the incident.

Another 65 year old men who ran a tea stall also gave a statement
that he had never heard of this incident at the time, ‘The news is totally
false .... Because at that time I
never saw or heard of any incident like that.’

And two further witnesses, said that the family members of Sheikh
Mozaffor Ahmed ó who had testified to the
tribunal that Salauddin was present - had
never previously claimed that the BNP leader was involved.

Highly relevant ... but are they true

So these two categories of witnesses – the six who support the
Salauddin’s alibi defence and the twenty that challenge key elements of the
prosecution case – are on the face of it highly relevant to the decision on whether
the accused is innocent or guilty.

However, as with any witness, it is possible that these ones are not telling
the truth.

But this can only be determined when they testify in court,
and have their evidence tested through cross examination.

So why were these witnesses never summoned to court to give
evidence?

The short answer is that in relation to 23 separate offences alleged
against Salauddin, the Tribunal only allowed the defence lawyers to call 5 witnesses, subsequently restricted
to 4.

This decision was made after Tribunal had imposed no such limit on
the number of witnesses the prosecution could summon. There were in total 41 prosecution
witnesses.

About Me

This is a personal blog, and any views are solely mine. I am a Bangladesh based journalist who has since August 2010 worked as Editor, Special Reports for the Bangladesh national newspaper, New Age (see my other blog on the International Crimes Tribunal in Bangladesh: http://bangladeshwarcrimes.blogspot.com) Prior to working at New Age, between March and September 2010, I worked as a senior editor and reporter at the news website, bdnews24.com and before that I spent seven months at the Bangladesh newspaper, the Daily Star, setting up a small investigations unit. Between 2000 and 2009, I was the Executive Director of the Centre for Corporate Accountability, a UK based not-for-profit organisation concerned with workplace safety. Before that, I worked as a Television journalist and producer for about seven years working mainly for the television production company, Twenty Twenty Television in London. In 1995, I was involved in making the Royal Television Society award winning Channel Four documentary, the 'War Crimes File', a film about war crimes allegedly committed by three men during the 1971 War of Indpendence. I have lived in Dhaka since 2003.